STATE OF GUJARAT Vs. SUBRATI SIRAJUDDIN

JUDGEMENT

(1.) This is a criminal appeal by the State of Gujarat against the acquittal of respondents Nos. 1 and 2.

(2.) The prosecution filed two separate complaints against respondent No. 1 and respondent No. 2 who are father and son under sec 66 (b) of the Prohibition Act. The complaint against respondent No. 1 was that he was found in possession of more than 500 one lb. bottles of liquor when his room was raided and searched on 13-1-59. The complaint against respondent No. 2 was that when his room in Jethalal chawl at Behrampura outside Jamalpur Darwaja Ahmedabad was searched on 13-1-59 in the presence of panchas he was found in possession of more than 2000 one lb. bottles of liquor. The two cases arising out of these complaints were Nos. 256 of 1959 and 257 of 1959. The learned Magistrate recorded the pleas of the two accused separately in the two cases. On 16-6-59 he adjourned the two cases for evidence of the complainant and the witnesses. On 9-7-59 however the learned Magistrate consolidated the trial of the two accused recorded the evidence and pronounced his judgment acquitting both the respondents. The State has now come in appeal against the acquittal of the two respondents.

(3.) Without going into the merits of the case and detailed appreciation of the evidence we must order a re-trial separately of the two accused. The prosecution had filed two separate complaints and the cases arising out of the two complaints were numbered separately as cases Nos. 256 of 1959 and 257 of 1959. It is always open to the prosecution to file a single complaint in respect of more than one accused person and if the circumstances are such that the provisions of sec. 239. Cri. Pro. Code would apply there can be a proper trial of such a complaint. For instance if the case of the prosecution is that two accused have committed offences in the course of the same transaction it is open to the prosecution to file a single complaint against two accused persons. Again if it is the case of the prosecution that two offences of the same kind have been committed jointly by two accused persons within a period of 12 months it is open to the prosecution to file a single complaint in respect of such offences committed by the two accused persons. A joint trial of two different accused persons must comply with the requirements of sec. 239 Cri. Pro. Code. The very fact that the prosecution filed two separate complaints against the two accused persons would show that it was not the prosecution case that these two offences were part of the same transaction or that they were committed jointly by the two accused persons. The learned Magistrate had himself started the trial of the two cases as separate trials and recorded the pleas of the two accused separately in the two separate cases. It was therefore not open to him to consolidate the trial of the two accused after recording the pleas of the accused separately in the two different cases.